The Legal Status of Cohabition in the UK

Cohabitation, a relationship between individuals whereby they live together and usually procure children without resorting to marriage,  used to be stigmatised and attracted a lot of opprobrium upon itself during the past^[1]. However, today, not only is there no stigma attached to cohabitation, but it is also one of the fastest growing types of relationships in UK. Data from the Office of National Statistics suggest that the number of cohabiting couples was the fastest growing family category, increasing from 1.5 cohabiting couples in 1996 to 3.3 million in 2016^[2].  Despite cohabiting gaining traction among couples, the laws and legal principles regulating cohabitation have been ossified, and rendered immaterial in today’s world.

Some argue that cohabitation is on the rise due to the fact that cohabiting couples enjoy the absence of the formal framework. This aspect of cohabitation enables the couples to get rid of the unnecessary formalities, allowing them to form a  family without the complications.  However, as can be evidenced in this essay, that viewpoint not only fallacious, but detrimental.

The lack of rights enjoyed by cohabiting couples, as will be discussed,  places certain and present obstacles, placing marriage and cohabiting couples on different footings.  The main disadvantage is the absence of a duty of support and reciprocity, which has been well established in various cases. While considering the law pertaining to cohabitation, English courts were initially averse to confer certain rights upon cohabitants. Although the scenario has undergone dramatic changes regarding the family law, there are still areas which need to be developed further for example cohabiting partner’s right to their partner’s pension. This essay endeavors to explore these areas and argue why it is critical to afford greater legal representation to cohabiting couples in the UK.

One of the areas  as to cohabitation where the current law is proving ineffective is the property rights of cohabitation couples. Like married couples, cohabiting couples accumulate material possessions such as property, automobiles, securities over the course of their relationship. Unlike married couples, who, under intestacy rules,  are  entitled to an automatic ownership of a property once their partner dies, cohabiting couples do not have a legal right to an ownership of their deceased partner’s estate in the absence of a will designating them as the beneficiary. Under The Inheritance (Provision for Family and Dependants) Act, the surviving partners can claim for an intestate partner’s estate as the deceased partner’s ‘dependent’^[3]. The process of claiming entitlement to the deceased partner’s estate as their dependant is ordinarily complicated and time-consuming, putting the surviving partner at a substantial disadvantage.  In the case of  Dyson Holdings Ltd v Fox, it was held that the surviving partner in cohabitation can be deemed a ‘family member’ of the instate partner^[4]. However, although welcome, the decision fails short of providing the requisite legal recognition for cohabiting couples.  These current  protections conferred to partners in cohabitation are yet fragmentary, and do not suffice to offer adequate legal protection. In cases involving a partner’s claim to an inheritance, cohabiting couples currently can inherit up to  £325,000 without being due inheritance tax, whereas married partners can inherit with tax exemptions, further highlighting the disparate preferences of the forms of family in question.

Regarding separation of a cohabiting couples, laws and regulations have long ossified, at best. Unlike in marriages, where partners, under the  principles of Section 25 of the Matrimonial Causes Act 1973, are entitled to a division of matrimonial assets, partners in cohabitation cannot claim entitlement to their former partner’s  assets^[5]. Section 25 provides an expansive factors that determine how assets are to be apportioned between the parties, fostering equity in divorce cases. However, that is not the case with couples in cohabiting, where partners can claim ownerships in a poverty provided that the property partners  in cohabitation are registered as joint tenants of the property. Separation usually culminate with either party assuming full ownership given that the property was registered in his or her name.  Should either party in cohabitation decided to dissolve the cohabitations, they can legally assume full ownerships of assets and properties, putting the other partner in financial jeopardy.   The lack of property rights conferred upon cohabiting couples is highlights how ambiguous and inconsistent the laws related to cohabitation law are.

Cohabitating couples can choose to draft a cohabitation agreement, specifying each partner’s assets, and how they should be apportioned in case of a separation. Some argue that cohabitation agreements, which have gained traction lately, can supplant statutory and common law protections. Unless otherwise is stated, cohabitation agreements are devoid of maintenance and therefore financially limiting as the parties cannot claim damages on the unlawful death of the other partner. It is evident cohabitation agreement is not as effective as the protections afforded to married couples by the  Matrimonial Causes Act, Family Law Act and etc.

Another inefficiency of cohabitation laws are how averse to allowing for a maintenance in the case of separated partners in cohabitation. Maintenance is a financial facility offered by either partners dissolving their marriages to help them ensure they have financial stability  following their divorce. Married couples is entitled to maintenance payments.  In relationships, either party usually forgoes his or her profession to contribute to the stability of their relationship, foregoing  financial stability in the future as a result. Maintenance payments assume a critical role in assisting the other partner.  However, cohabiting partners are  not entitled to such payments following separation, placing the financially frail partner in financial instability in the future.

Furthermore, Matrimonial Causes Act circumscribes  the cohabitants rights to pension assets as the parties cannot take an advantage on the partner’s pension assets even in case of the termination of the relationship, whereas couples in marital relations are entitled to a deceased partner’s pension upon their death^[6]. Recently,  Supreme Court recently ruled that  Denise Brewster, who had been cohabiting with her partner,  was entitled to her deceased partner’s pension^[7]. The case illustrates how courts have become more or less amenable to the idea of conferring more rights on cohabiting couples in these cases. However, the case itself does not offer expansive legal protection, exposing the dearth of statutory protections for cohabiting partners. Pension sharing order, though usually overlooked, are essential in any divorce settlement negotiations. Under the current law, Matrimonial Causes Act, divorcees are entitled to claim pension sharing of their former spouses.

The scope of cohabitation is even more vague while considering parental responsibilities. Either of the partners can take part in making crucial decisions regarding their child if they have parental responsibilities. Unlike in marital relations, cohabitation contracts confers automatic responsibilities merely upon the mother of a child. The partner of a child’s mother can only be involved into paternal responsibilities when certain considerations are fulfilled  set out in the Children Act 2004, depriving the child’s father of the automatic right to be registered as the legal parent^[8].

The fact that current laws have atrophied in the face changing family dynamics has been explored by many others and legal experts alike. Diduck and Kaganas in their seminal book explore how societal shifts still favor marriage as the most privileged one, owing to how law has been conducive to that current trend^[9]. Had law been more receptive to the idea of cohabitations, they argue that it would have been well received by others. The ineffectiveness of the current legislations and laws regarding the rights of cohabiting couples have been further stressed by Lord Justice Wall, who called for the same rights to cohabiting couples, citing well-justified of women cohabitees being severely disadvantaged in cases of separation^[10].

The arguments presented above  that the current English legislation omits to confer fundamental rights to cohabiting couples, placing cohabiting couples at significant disadvantage. Like married couples, who already enjoy a spectrum of rights, cohabiting couples also require laws that are in keeping with current trends. Overall, the inefficiencies in the current legislation, as examined above, impose undue disadvantages on cohabiting couples. Whether it is  property rights, maintenance rights, inheritance rights, cohabiting couples face unprecedented hurdles due to the current law being refractory to change.

^[1] Baron E Bernstein, ‘Legal Problems Of Cohabition’ (1977) 26 National Council on Family Relations <http://www.jstor.org/stable/581757> accessed 31 October 2017.

^[2]Families And Households In The UK: 2016′ (Office for National Statistics, 2016) <https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/families/bulletins/familiesandhouseholds/2016> accessed 31 October 2017.

^[3] The Inheritance (Provision for Family and Dependants) Act 1975

^[4] Dyson Holdings Ltd v Fox [1976] QB 503.

^[5] Matrimonial Causes Act 1973

^[6] Matrimonial Causes Act 1973

^[7] Josie Cox, ‘Supreme Court Gives Woman Right To Late Partner’S Pension In Landmark Legal Win For Unmarried Couples’ Rights’ (The Independent, 2017) <http://www.independent.co.uk/news/business/news/supreme-court-women-denise-brewster-late-partner-pension-william-leonard-mcmullan-uk-unmarried-a7568576.html> accessed 31 October 2017.

^[8] Children Act 2004

^[9] Alison Diduck and Felicity Kaganas, Family Law, Gender And The State (3rd edn, Hart 2012).

^[10]  Fraces Gibb, ‘Cohabiting Couples Should Get More Rights, Says Judge’ (The Times, 2017) <https://www.thetimes.co.uk/article/cohabiting-couples-should-get-more-rights-says-judge-cxpl5vc3x85> accessed 31 October 2017.