Written evidence from Dr Philippa Brice [HAB0036]

Introduction

I am responding to this consultation in a personal capacity. I am a woman who has been married for just under 23 years, since the age of 23, which was considered young even back then! My husband and I have two children aged 9 and 19.

General comments

I welcome the fact that the Women and Equalities Committee are examining the issue of cohabiting partners as the fastest growing family type in England, as this is an important area for scrutiny. However, I do not believe that the solution to the problems this poses – especially for women and children – lies in attempts to confer equal status between purposefully casual, transient or preliminary living relationships and the formal legal partnerships available to those who wish to make use of them ie. civil partnerships or marriage. Further, it risks actively undermining the adoption of stable partnerships of these kinds and the profound benefits these offer to couples, children, and wider society.

Q1: Should there be a legal definition of cohabitation and, if so, what should it be?

Possibly; some recognition of long-term living arrangements may be relevant for use by the courts in certain circumstances, especially pertaining to allocation of assets for the care and support of children. In fact, I think that the main issue is actually around fair provision of support for the children of cohabiting parents, and in this instance a more robust application of existing mechanisms to ensure proportionate evaluation of financial assets, allocation of suitable sums for the support of children, and robust enforcement of such decisions. Possibly additional mechanisms would be needed here. However, I see no reason why adults should have new legal or financial claims on someone with whom they have lived by casual arrangement, potentially for a very short period.

It would also be highly problematic to define cohabiting – sharing a bed? Engaging in sexual activity? Reference to ‘romantic relationships’ is inadequate, though it sounds as if it may be a euphemism for sexual partnerships. If so, how do you prove this? If not, wouldn’t adult children, lodgers, au pairs or nannies, long-term guests etc. also be covered by any definition? Some element of duration would be needed to recognise a relationship that is not new or transient but again, other categories of people sharing houses could inadvertently fall within any definition of this kind.

Q2: What legislative changes, if any, are needed to better protect the rights of cohabiting partners in the event of death or separation?

The main relevant rights I can see are around fair provision for children, as mentioned above. If people wanted their partners to have legal rights to their assets, then a number of legal mechanisms are open to them such as wills, shared ownership agreements, civil partnerships or marriage. Rather than amending the law, it would surely be more appropriate to ensure better awareness of existing legal options (especially among women, who are more likely to be economically disadvantaged) and make them readily accessible to those who wanted them – perhaps a simplified form of agreement relating solely to residential property, available in a defined, easily comprehensible format and for a suitably modest fee.

Q3: What equalities issues are raised by the lack of legal protection for those in cohabiting relationships?

As mentioned, women are more likely to be financially disadvantaged in cohabiting relationships where children are involved, because they are more likely to have significant time away from the workplace (maternity leave), and to work part-time to facilitate childcare. This makes children more likely to suffer. Therefore, protections should be considered to enhance the legal protections for children and their primary care-givers – usually but not always mothers.

Q4: Should legal changes be made to better provide for the children of cohabiting partners?

These are the only legal changes that should be considered – but proper enforcement of existing mechanisms to ensure allocation and delivery of fair and proportionate financial support from both parents of children (including proper consideration of the need for personal care-giving and the impact this has on earning capacity) may be sufficient. Enhanced measures around legal registration of new births might offer one route towards establishing essential information and informing partners of their rights and responsibilities towards the child.

Q5: Should cohabiting partners have the same rights as those who are married or in a civil partnership?

NO – otherwise what would be the purpose of marriage or civil partnerships? Moreover, marriage in particular is widely recognised as a far-reaching social good, offering a supportive legal structure in recognition of long-term committed and publicly recognised relationships. These offer major benefits to those who undertake them, and more importantly offer a critically important stability to children of that relationship that confers significant and long-term benefits for their mental, physical and emotional well-being.

Cohabitation is unsurprisingly a much more unstable arrangement than marriage, and children of cohabiting parents are many times more likely to experience the separation of their parents, which can have devastatingly negative effects on their long-term educational, financial, relationship and health outcomes. The government should focus on promoting and supporting the clear, if unfashionable, benefits of marriage, which at present is much more widespread among higher socio-economic classes, compounding the existing benefits arising for children of these partnerships and widening socioeconomic disparities. This has profound negative implications for not only the individuals concerned, but also communities, wider society and indeed the government, since troubled families require greater support.

Offering marriage or civil partnership-level legal benefits to couples who have made no firm decision or commitment to longer term association would actively undermine marriage. It is clearly well intentioned, but in my view would offer few benefits, create significant harms and is the wrong approach to a genuine problem.

Q6: Are there examples of good practice in relation to the rights of cohabiting partners in the UK or internationally that the Government should seek emulate in England and Wales?

No response

 

July 2021