Women and Equalities Committee 

Oral evidence: The rights of cohabiting couples, HC 130

Wednesday 2 February 2022

Ordered by the House of Commons to be published on 2 February 2022.

Watch the meeting

Members present: Caroline Nokes (Chair); Theo Clarke; Elliot Colburn; Philip Davies; Kim Johnson; Kate Osborne and Bell Ribeiro-Addy

Questions 138 - 178

Witnesses

I: Mike Freer MP, Minister for Equalities, Government Equalities Office; Tom Pursglove MP, Minister for Justice, Ministry of Justice and Neal Barcoe, Deputy Director, Family Justice, Ministry of Justice.

II: Professor Nicholas Hopkins, Law Commissioner for Property, Family and Trust Law, Law Commission.

Examination of witnesses

Witnesses: Mike Freer, Tom Pursglove and Neal Barcoe.

Q138       Chair: Good afternoon, and welcome to this afternoon’s meeting of the Women and Equalities Select Committee and our inquiry into the rights of cohabiting partners. This afternoon, in our first panel of witnesses, we have Mike Freer, Minister for Equalities at GEO; Tom Pursglove, the Minister for Justice at the Ministry of Justice; and Neil Barcoe, who is the Deputy Director of Family Justice at the Ministry of Justice. Thank you all for coming along this afternoon to take part.

I am going to start with a question for Minister Pursglove. We received only one page of evidence from the Government about the rights of cohabiting partners. Is that because this issue is not a priority for the Government?

Tom Pursglove: No doubt, over the course of the next hour, we will have a wide-ranging and informative discussion about these matters. Of course, various viewpoints will be expressed about the work that we ought to be doing in this space or otherwise. Clearly, as the Minister responsible for marriage law at the Ministry of Justice, I am very interested in the work of the Committee on this. I will be interested to see any recommendations and points that this Committee wishes to make.

I would make the point that there is a lot of work going on in the family law space at the moment in general terms: for example, no fault divorce, which is coming into force as of April, is a significant reform and the biggest reform in 50 years; the reforms around child marriage, which I know there is broad support across the House for; looking at better and alternative means of resolving family disputes; and, of course, important work in the domestic abuse area as well. There is a lot going on in the family law area, but as I say, I am very willing to have a look at the recommendations that the Committee may wish to make and will study the report carefully.

It is also important to mention that the Law Commission is set to report in July on the issue of reform in the marriage space generally, and again, the Government will make decisions about where we go from there having received that from the Law Commission.

Q139       Chair: With the best will in the world, the work we are doing is very much outside the marriage space. Are you concerned that the single largest growing group of partnerships are outside marriage? Are you worried that they are excluded from the important work—I absolutely agree with you on that—that the MoJ is doing?

Tom Pursglove: I would reiterate the point that I am very willing to consider any recommendations that the Committee makes. The report that you issue will, no doubt, be detailed and cover much of the evidence and the points of view that you have heard. I would say, for example, that one area that resolves quite a lot of the challenges in this space is civil partnership opportunities, which, for a low cost of £46 and 29 days, do mean that people have access to a mechanism that does help to formalise a relationship, if they choose to go down that route, with the various arrangements and protections that come with that. There is perhaps more that we can do to promote that and to make sure that there is awareness of it, and that people look at that as an option to perhaps address some of the concerns that, no doubt, the Committee is going to discuss.

Q140       Chair: What thought have you given to those who consciously decide they do not want to be married and they do not want to be civilly partnered?

Tom Pursglove: As I say, we will gladly consider the points that this Committee makes in its report. I am mindful of these issues. There is a lot of work going on in this space generally—in the area of marriage and relationships—but this is something that I am willing to keep under review.

Q141       Chair: You are not going to commit either way as to whether you are in favour of law reform for cohabitants or not?

Tom Pursglove: No, not at this point.

Chair: Thank you for that. We might revisit that with you in the fullness of time. Kate Osborne.

Q142       Kate Osborne: I want to ask about property law on separation. Currently, property law has been described by some witnesses as being unfit for purpose when applied to disputes between former cohabitants. I wonder how you respond to this. Could we start with you, please, Tom?

Tom Pursglove: Thank you for the question. Property law is an important aspect in relation to these matters, and I will invite my colleague to come in with a little bit more detail. My understanding is very clear that the court will assess what the intentions were at the time when making decisions around what should happen in relation to property. The intentions at the time—for example, people making contributions to paying the mortgage—is something that is taken into account by the court. The consideration, effectively, is what is it reasonable to assume in terms of intentions, but perhaps I can bring my colleague in just to give a little bit more colour around this.

Neal Barcoe: Thank you, Minister. The legislation that applies here is the Trusts of Land and Appointment of Trustees Act, or TOLATA. You have probably heard from other people who have given evidence on it. It is in the civil division, the Chancery division. As the Minister said, the court will look at what was the stated intention. If you have a cohabiting couple who are separating and one party is legally the owner, it may be that the other partner has contributed to the mortgage over time, or they may well have contributed to developments on the property, and they can put in a civil claim to have that recognised by the court. As the Minister indicated the courts will look at that in a very specific way. They will judge what was the intention behind those payments, what was the understanding that those individuals reached. The court will not look at what might be fair in the circumstances; it will look at broader issues; it will look at it purely as a civil matter.

Q143       Kate Osborne: They said to us that proving the existence of a beneficial interest in the home is complex, confusing, very expensive and time consuming. I wondered what you might have to say in relation to that.

Neal Barcoe: There are a couple of things that can help in this space. Couples can ensure that the beneficial shares in the property are clear so that on the formal documentation, if they are down as joint owners with 50/50 shares, or if it is slightly more complex than that, there are opportunities to state that and make sure that it is there. In the absence of a document, or where somebody wants to challenge, then the law does look at that and the courts will ascertain what was agreed. The challenge comes from the courts needing to apply what were the intentions, and that can be difficult to prove at times. The courts need to look at what written communication there was at the time. They are not looking on the balance of what is fair; they are looking at what was agreed here and what was the intentions of the individuals at a particular time. I understand where some individuals may challenge how difficult that can be at times.

Q144       Kate Osborne: Minister Freer, we have heard that it is particularly unworkable for survivors of domestic abuse in this regard. What options do they have in the current system?

Mike Freer: Can you go back and just retrack on the impact on domestic abuse survivors?

Q145       Kate Osborne: Yes. We have heard that the current property law—particularly for people who are survivors of domestic abuse—has been described as being extremely difficult. I am just asking you what options do they have in the current system?

Mike Freer: I would have to come back to you on that because I am not sure that the impact on domestic abuse survivors is different from any cohabiting partner, so I would have to find out the specifics for you. I do not want to give you an answer off the cuff.

Q146       Kate Osborne: I think it is around the fact that they might have less legal right to stay in the home than those who are married or in a civil partnership.

Mike Freer: In terms of a cohabiting couple, the property rights are very different, and at the moment I am not aware there are any plans to change the property rights—unless the officials are aware of that? The Law Commission may look at it, but I am not aware there are current proposals to change the property laws.

Q147       Kim Johnson: Good afternoon, panel. Minister Freer, the law as it stands means that people, usually women, who have contributed financially to a cohabiting relationship can often be left with nothing. What would you say to that? Do you agree that there is an equality issue that needs to be addressed?

Mike Freer: Again, without wanting to make policy on the hoof, the ability of any cohabiting partner to seek a financial split based on their contribution to the family unit or the household, whether it is property or other contributions, is already available. The difficulty is always providing the evidence that they have contributed.

Q148       Kim Johnson: We have heard evidence from a number of witnesses throughout this inquiry that the lack of information that is disseminated to people to make them understand their rights makes things very difficult, particularly for women, because there is this myth about common law marriage. People mistakenly believe that they have, to a certain extent, the same rights as a married couple. Often, women who have been in long term cohabiting relationships—who have contributed to the purchase of a property, bills and everything—are then left virtually destitute. From my point of view, as a member of this Committee, I would say that there is clearly an equalities issue in terms of women being dealt with in a very difficult situation.

Mike Freer: It is a fair point—the lack of understanding that there is no such thing as a common law marriage is a very valid point. Whether that is something we can seek to address through information campaigns is relatively straightforward. I think we probably need to wait for the Law Commission, which is looking at a fundamental review of all aspects of marriage law, to see if that leads us to a position where we can go further to ensure that people who have contributed to the family unit have some legal redress when that unit breaks down.

Tom Pursglove: It is worth adding on that point that my understanding is that even where legislation has been pursued—for example, in Scotland—there were still quite a few myths and perhaps not a complete understanding as to what people’s rights were having had that reform. I agree with what Minister Freer says. It is definitely worth us having a look at what more we can do to try and generate greater awareness of the rights that people have. For example, the issue around property and rights to property with tenancies; It is obviously advantageous if individuals pursue joint tenancies rather than individual tenancies, which then helps to provide a little bit more certainty and security. It is things like that, it is that sort of practical information where I am very happy to take that away and look at what more we could perhaps do in that space.

Q149       Kim Johnson: Some people in non-recognised religious marriages may not realise that the law treats them as if they are unmarried. What work has been done to ensure that cohabitants—regardless of why or how they cohabit—are not discriminated against following separation or death of a partner?

Mike Freer: I might ask the officials to correct me if I have got this wrong, but there is a piece of work about to be completed, if not just completed, which is a review of where marriages can take place because what are known as void marriages are an issue, particularly in religious settings. There is this piece of work on how those settings can be regularised to make them not void—sorry if that is a bit clumsy. That work has already been done. I am not sure if the report is out or due.

Neal Barcoe: This is the Law Commission’s review of marriage ceremonies, which we have referenced a few times. It is due to report in July, and on this particular issue I think there are two things that they are proposing. We do not have their final report yet, but what they consulted on is helpful in two ways. Professor Probert may have mentioned it in her evidence at a previous hearing.

The two ways are, first, they propose to make it easier for religious-only weddings to come within the ambit of what is recognised by the state. They are proposing removing the buildings element of the current law, so as long as the celebrant is authorised and it is a legal marriage, that will capture more religious-only weddings, which may currently take place in a restaurant or somebody’s parents’ home, which is not recognised.

The second, and probably more important, element is that they are looking at bringing more of these weddings within the ambit. Minister Freer mentioned void marriages. Their proposals are that if one party to a wedding believes that the celebrant is authorised, then that would be considered a void marriage. Even though it is not technically legally a marriage it would be classed as a void marriage if they believed that to be the case when they got married and vows were exchanged. What that means is they would then be able to have the full access to the financial remedies that are available if you are divorcing. In those circumstances then, somebody having a religious-only wedding believing it to be recognised by the state currently would not be able to access the financial remedies of divorce, but under the proposals of the Law Commission they would, which will go a long way to addressing that particular problem.

Q150       Chair: When you say a long way—you have talked about celebrants and you have talked about the buildings, but what about religious-only marriages that take place abroad? Is any consideration being given to the equalities issues there, where particular faiths may have had religious-only marriages but then come to the UK and hope to be protected by property laws here?

Neil Barcoe: I am not certain the Law Commission has looked at that specific issue, but obviously the Government will want to look at that in the round when they produce their report, and if we feel there are gaps then obviously that would be considered.

Q151       Chair: When considering that, can you give us any indication of numbers, proportion?

Neal Barcoe: We can write to the Committee on that and provide you with a sense of what we think the numbers may be. I am afraid I do not have the numbers.

Q152       Chair: Minister Freer, from an equalities perspective, the issue of religious-only marriages is, from my position, quite worrying because we have heard evidence that it is predominantly women who are negatively affected; we also know that it may be people with the protected characteristics of either ethnicity or faith. Is the GEO doing any work on it?

Mike Freer: I think the work is being led by MoJ, waiting for the Law Commission to issue their report. We are aware of the disproportionate impact on women, and I think that what has been covered as the potential tightening of the rules on these void marriages should then extend protection to those, particularly vulnerable women, in faith-based marriage or who were married in a faith-based setting. From memory, the Law Commission is suggesting that it becomes an offence where the celebrant suggests or misleads a couple that it is actually an official marriage rather than simply a religious ceremony. When the report comes out, I think some of the gaps that you are seeking to plug will be plugged or it will highlight where further work needs to be done.

Q153       Theo Clarke: I just want to go back to this point that my colleague Kim was raising about the common law marriage myth. We heard evidence from previous sessions that belief in this myth has actually not decreased at all significantly in the last 15 years. I was quite shocked to hear that over 55% of people in households with children still believe that they do have common law marriage rights. In 2019, the Government stated that the solution to this was not more legislation but education. You said that in 2019, it is now 2022, so can you give this Committee an update on what specific steps you have taken to address that? Minister Pursglove, you mentioned about having greater awareness. What has the Government done to achieve this?

Tom Pursglove: I am not familiar with the awareness work that has gone on around this issue, but I will gladly take that away and write to the Committee with any steps that have been taken previously. You will appreciate I came into this role in September and it has obviously been quite a busy time since then but, as I said at the very outset, this is an area that I am happy to look at. I am very willing to take it away and see what more we can do in that space to try and increase the awareness that there is of these matters and the rights and the protections and the various steps that people can take to try and improve their situation.

I gave a practical example at the beginning of the opportunities that civil partnerships present. I do think that that is a good thing. I think civil partnerships are a good thing; I think marriage is a good thing. I recognise that there are issues of choice involved in all of this as well, as you would rightly expect. There is a lot of work going on in this area of family law generally. As I say, the Law Commission report is expected in July, and I would expect that what we will want to do is consider that as quickly as possible. For example, I was involved in a debate in Westminster Hall last week in relation to humanist marriage; there is a huge appetite being displayed across the House for progress on that. I want to be able to come forward and set out for the House’s benefit the approach that we intend to take on a whole range of issues that the Law Commission is looking at.

On this point about awareness, I will very happily take that away, reflect on what more we can do and perhaps provide a little bit more information to the Committee around steps that have been taken previously.

Q154       Theo Clarke: I appreciate you are new to the role so that would be helpful. You must have some reflections on the fact that this myth is now so embedded in society it will be difficult to change. What are your personal reflections on that?

Tom Pursglove: It is an awareness point, is it not, in exactly the way that you have alluded to in your line of questioning? The more that we can do to educate and inform, clearly, the better it is. We want people to have security. We want people to be protected from adverse outcomes. Anything that we can do to improve awareness, to make sure that people have all the information that they can possibly have to make the best-informed decisions that they can make, clearly, that is a good thing, and the better it is.

Q155       Chair: Mr Barcoe, how long have you been in post?

Neal Barcoe: I have been in post for just over three years now, Chair.

Q156       Chair: You would know whether there have been any education campaigns between 2019 and 2022.

Neal Barcoe: As far as I am aware it is true that there have been no specific Government education campaigns here during that time. As Minister Pursglove said, the introduction of opposite sex civil partnerships is a significant step here. You can envisage a campaign based on that providing a very reasonable way of regularising your relationship and gaining access to all of the protections that married couples have, without having to pay for an expensive ceremony or go through particularly onerous things that you might have to do around marriage or concerns about the patriarchal nature of marriage. For all of those reasons, civil partnerships are a good thing to do in terms of giving yourself protection. Promoting that and focusing on that is a way of trying to bust what is a very pervasive myth that has been in place for quite some time and there are a number of reasons for that.

Q157       Chair: There has been no education. Should education and information around what we will describe as the risks of cohabitation be part of the PSHE in schools?

Tom Pursglove: I would not wish to intrude on the ground of Education Ministers, but no doubt, if that is a recommendation that your Committee makes, I am sure that colleagues in the DfE will consider that. I would just make the point that this is an opportune moment. For example, because of our reform agenda around marriage, there is space to look at awareness, and particularly to pick up on awareness around some of the points that my colleague set out in terms of void marriages; we want people to have a greater awareness of that for example. It seems to me that there is a period ahead of us where we could make quite an effort to improve awareness and educate around these issues.

Q158       Chair: I am coming back to you because you highlighted the issue about choice. If we agree that people might choose not to have a civil partnership, not to get married, but to simply cohabit, the message I am getting from you is that they should not do that, that they need to have a civil partnership. Is that the Government’s solution to this?

Tom Pursglove: That is not the position that I am taking. What I have said is that there is clearly a low-cost option that individuals could choose to pursue, if they wished to do so, that would arguably be quite helpful to them in addressing some of these issues that we are debating and discussing today and that are an issue for individuals and couples across the country.

Q159       Chair: How many years into a relationship or a cohabitation should somebody have a civil partnership just to get the paperwork sorted?

Tom Pursglove: That would be a matter for individuals to decide between themselves. I do not think it would be for Ministers or for Government to be prescriptive about those matters.

Q160       Chair: Do you accept that the fastest growing sort of household is one of cohabitation?

Tom Pursglove: Yes, I do accept that this is something that we are seeing become more and more common.

Q161       Chair: Do you not see that there is a bit of a challenge around this? Twice you have said there is a low-cost option to sort this; it is civil partnership. Mr Barcoe said civil partnership is the way to sort this. Many couples end up cohabiting without a definite start date—it sort of evolves—and the solution of, “Well, enter into a civil partnership,” might not come along at a convenient moment in time.

Tom Pursglove: Life is imperfect, is it not? People’s relationships and people’s situations develop. There is no one-size-fits-all approach to that. There is a legitimate question coming from the Committee about what more we can do to increase awareness. That is definitely something that I am willing to take away. The point that we are making is simply that the civil partnership option may be appropriate for some people. There is perhaps more we can do to increase awareness of that. With the Law Commission report coming in July there is a space within which we are reviewing matters in this general policy area and, as I say, I would be delighted to consider any recommendations that the Committee may seek to make on this, because I think it is an opportune moment to be looking at these matters.

Q162       Elliot Colburn: Minister Pursglove, these questions are probably more directed to you, but Minister Freer and Mr Barcoe please do come in if you would like to add anything. We have spoken a lot about waiting for the Law Commission’s upcoming report and, indeed, the report that will come forward from this Committee, and it is really reassuring to get that commitment to look at that. Could I ask about timeframes? the 2007 Law Commission proposals are still awaiting Government action. We have had four general elections, four Prime Ministers, and God knows how many people in and out of the MoJ since then. Have you had any discussions with the Law Commission about those 2007 proposals? If so, what was discussed in those meetings?

Tom Pursglove: No, I have not had a discussion with the Law Commission about those proposals.