Written evidence submitted by University of Leicester [HAB0369]
As a Lecturer in Law at the University of Leicester, with a particular expertise in Family Law studies intersected with Gender, Sexuality and Law scholarship, I am pleased to have the opportunity to submit a written response to the Cohabitation inquiry. My research primarily focuses on the rights of same-sex couples, with a particular research interest in same-sex marriage and the impact the legislation has had on the lived experiences and rights of same-sex couples, and LGBTQ people more generally.
I am submitting evidence to the Committee as I am convinced of the need to extend some rights to cohabiting partners. However, I believe that too greater imposition of rights for cohabiting partners would be detrimental and could lead to difficulties both in legally and socially, potentially having the effect of reducing cohabiting partners. I will set out my responses to the Inquiry below.
Should there be a legal definition of cohabitation and, if so, what should it be?
A legal definition of cohabitation should be introduced that seeks to be inclusive, but also cognisant of the danger in a too-wide definition. For instance, cohabitation rights should be limited to those in serious, long-term relationships. However, it should also acknowledge that a relationship need not be romantic, sexual, or conjugal. This would give rights to those cohabiting who are prevented from entering into any form of other recognised relationship (e.g. marriage or civil partnership), such as sibling relationships who live together or friends who cohabit. There should be some form of test that establishes the seriousness, and the long-term nature of the relationship.
However, it is also clear that many of those cohabiting do so for a reason, and may have chosen not to enter into a civil partnership or marriage, and therefore not receive any rights. This should not be overlooked and should be taken into account. If there was to be a dispute over the seriousness/long term nature of the relationship, in these situations, I believe that judicial discretion should be used to ascertain whether it would be right to impose duties or obligations on cohabiting partners. This could ascertain the nature of the length of time of the relationship; the nature of the cohabitation (e.g. whether they were in a shared dwelling with other individuals, a rented or owned house, etc); the nature of their relationship and its degree of seriousness; and whether they considered themselves to be cohabiting. It should be noted that cohabitation does not only occur in dyadic relationships (I.e. between two people) but can also occur in multi-partner relationships.
What legislative changes, if any, are needed to better protect the rights of cohabiting partners in the event of death or separation?
In order to ensure that cohabiting relationships are protected, but not to an extent that is unfair to those who do not wish to acquire rights/duties/responsibilities, I believe that there would be an ‘opt-in’ cohabitation register. This register could recognise those who are in a serious and long-term cohabiting relationship. Parties could register themselves should they wish. This register would not be designed to replace or be a substitute for marriage or civil partnership, but merely a form, completed online/at home, which can inform the state that parties are cohabitees and would acquire rights/duties/responsibilities of the others’ property, in the event of their death, but would still co-exist alongside existing legislation regarding inheritance. Further, in order to avoid this registration being lifelong, and analogous to civil partnership, registration should be required yearly in order to more accurately record those relationships and discount those who do not register yearly.
This system would not be without its flaws; primarily reluctance and ignorance of requirements to re-register each year, and non-IT users would similarly struggle.
What equalities issues are raised by the lack of legal protection for those in cohabiting relationships?
There are numerous examples of the damage done by lack of legal protections and recognition for some kinds of relationships, most obviously same-sex relationships, many of which were typified in the AIDs crisis of the 1980s and 1990s. further, there is a wealth of case law that demonstrates the faults of the legal system in being unable to recognise cohabitees in the event of death, such as Fitzpatrick v Sterling Housing Association Ltd (2000) 1 FCR 21, Burden and Burden v the United Kingdom (application no. 13378/05) and most recently, R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for the International Development  UKSC 32 which may be used to evidence the importance of offering recognition to certain relationships in lieu of marriage.
Should legal changes be made to better provide for the children of cohabiting partners?
In my opinion, the rules regarding unmarried parents are sufficient and do not need to be altered in light of this. However, there may be room to include a presumption of paternity if the parents are registered as cohabitees for unmarried fathers, who currently do not receive such a presumption and must be noted on the birth certificate (s4 Children Act 1989). In most cohabiting couples, we may assume the father would be on the birth certificate.
Should cohabiting partners have the same rights as those who are married or in a civil partnership?
No. Cohabiting partners have not chosen to be married or enter into a civil partnership, and therefore should not be treated as such. The rights of cohabitees should not be as far-reaching or extensive, even if they register as cohabitees.
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?
New Zealand’s ‘de facto relationships’ may be considered, however these do not require any form of opt-in and occur, in general, when a couple cohabit for a certain amount of time. I do not believe such an imposition of rights to be appropriate.
I look forward to hearing the outcome of the inquiry and any response.