Written evidence from Dr Ellen Gordon-Bouvier, Senior Lecturer in Law, Oxford Brookes University [HAB0374]

Background of Author

1. I am currently a Senior Lecturer in Law at Oxford Brookes University, UK. In 2018, I completed a PhD examining the legal status of cohabiting homemakers and carers at the University of Birmingham. I have published several peer-reviewed articles on cohabitation, divorce, and financial provision. I am also the author of Relational Vulnerability: Theory, Law and the Private Family (Palgrave Macmillan, 2020), which examines the way that English family law disadvantages those who undertake caregiving and homemaking in the context of intimate relationships. I am an academic member of the Law Society’s Family Law Committee and have responded to numerous consultations covering all areas of family law and access to justice. Prior to entering academia, I was a practising solicitor at a leading London firm, specialising in all areas of family law, including cohabitee disputes under the Trusts of Land (Appointment of Trustees) Act 1996.

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

2. If the law in this area is to be reformed, any legislation will need to clearly specify the relationships it covers. The key question is how narrow or broad that scope should be. In existing legislation, where cohabitants are mentioned, they are usually defined as those couples living as spouses or as civil partners.[1] However, a more precise definition may be needed in the case of eligibility for financial provision.

3. Defining qualifying cohabitation usually involves specifying a minimum durational requirement (as is the case in jurisdictions such as Canada, Australia, and New Zealand) or the presence of children or other caring commitments. However, not all jurisdictions that allow financial claims by cohabitants specify a durational requirement. For instance, the Family Law (Scotland) Act 2006 does not specify a minimum length of cohabitation but limits relief to those who can show either that they have suffered economic disadvantage or that the respondent has gained an economic advantage as a result of their contributions.

4. One feature that sets cohabitation apart from marriage is that the nature of the parties’ relationship and their intentions in relation to it can vary significantly. Married couples are required to publicly state their long-term commitment and support through the making of vows, whereas no such requirement exists for cohabiting couples. There is understandably concern that applying the law to all relationships involving cohabitation may bring about unintended and undesirable consequences for those in relatively casual or short-lived relationships. By limiting relief to long-term relationships or those involving economic interdependence, some of these concerns would be allayed.

5. On the other hand, a narrow definition of qualifying cohabitation will inevitably exclude some relationships where relief may be morally appropriate, such as where the relationship falls narrowly short of the time-limit or where the parties do not have children but have a caring commitment to an adult relative. It is important to try to isolate what precisely the law is responding to. Is it the longevity of the relationship that entitles the applicant to financial relief? Or is longevity in fact simply an indicator that the parties are more likely to be financially interdependent and that therefore the applicant is deserving of financial relief? In my view, the latter is the more persuasive answer. Therefore, there should either be flexibility to waive any time-limit where circumstances warrant it, or legislation should specify (as is done in Scotland) that it is responding to relationship-generated disadvantage or advantage.

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

6. My comments below focus predominantly on the position on separation but are equally applicable in the case of death. In my view, the current position is wholly inadequate and out of line with other jurisdictions. The arguments made in favour of the current law are not persuasive. While there may be some couples who deliberately seek to avoid legal consequences, there are many who do not make a conscious choice to do so. Research has also revealed examples of couples where there is an economic and/or power imbalance and the stronger party is opposed to marriage whereas the weaker party is not.[2] It is unrealistic to assume that the parties to a relationship always speak with the same voice.

7. Even if the parties did not expressly intend legal consequences of their relationship, this is not necessarily a convincing argument why there should be no power to make financial provision. The family court’s jurisdiction under the Matrimonial Causes Act 1973 is not invoked simply because the parties expressly agreed to be bound by financial obligations. Rather, it responds to a range of factors, including relationship-generated need and contributions. These factors occur in cohabiting as well as married relationships and the law should respond to them.

8. It is also worth noting that the law’s stance does not have equal effect on all. For those who are financially secure and economically independent, the law’s refusal to intervene confers a direct advantage in that these individuals are free to pursue marriage-like relationships without the financial risk or obligation that exists in marriage. However, for those who are economically dependent on a partner, often due to childcare or other caring obligations, the current law puts them at enormous risk should the relationship break down. Rather than focus on whether the parties have expressly consented to legal obligations, law reformers should question whether it is fair or desirable for the law to allocate financial risk in this manner within a relationship.

9. A frequent objection to extending financial rights to cohabitants is that doing so would undermine the institution of marriage and may result in fewer people choosing to marry. This concern seems somewhat unwarranted. Jurisdictions such as Australia and New Zealand treat long-term cohabitants as if they were spouses, without a significant impact on rates of marriage. It would seem unlikely that the availability of financial remedies on divorce is what primarily motivates couples to marry.

10. Cohabitation is often argued to be a less stable family form and therefore not one that the state should promote. However, I would argue that cohabitation appears less stable partly because there is an absence of legal response to it, allowing both parties to easily walk away from the relationship, even if they share children or other caring obligations. Additionally, given the high number of couples that cohabit prior to marriage, measuring the stability of cohabitation versus marriage is very difficult. The vast majority of married or civil partner couples will have been cohabitants at some stage of their relationship so to simply categorise cohabitation as a less committed family form is unsatisfactory.

11. In light of the above, I believe that the law needs to be reformed to allow cohabitants to bring financial claims on separation similar in nature to those claims that arise on divorce. The need for legal protection is particularly compelling for those relationships where there is some dependence or interdependence (whether economic or through shared caregiving obligations). Such factors are more likely to arise in long-term relationships.

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

12. The major equalities issue is that women are far more likely to be adversely affected by the lack of legal protection for cohabitation than men. Women undertake significantly more caregiving work than men and are far more likely to be the primary carer for children within a heterosexual relationship (whether married or unmarried). It is well documented that caregiving obligations, particularly childcare, have a substantial impact on women’s earning capacity throughout their lifetime. This is partly due to the time constraints involved in being a caregiver, meaning that many women work part-time rather than full-time, which tends to carry with it fewer opportunities for promotion. It is also due to pervasive gender-norms that label women as natural caregivers, meaning that they may be less likely to achieve promotion at work, whether or not they have caregiving obligations.[3]

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

13. Legal obligations for non-resident parents to financially support their children apply regardless of the parents’ marital status. A resident parent can also apply for financial provision for a child under Schedule 1 of the Children Act 1989, whereby the court can make a range of orders, including settlement of property, lump sum, or periodical payments orders. It is important to note that any provision under Schedule 1 is for the child rather than the applicant parent, although in some cases, courts have allowed additional payments to the parents. In reality, claims under Schedule 1 tend to be restricted to cases where the non-resident parent is very wealthy, as the resident parent must use the ordinary route for claiming child maintenance through the Child Maintenance Service if the non-resident parent’s gross weekly income is £3,000 or less.

14. As the law already covers provision for children of cohabiting partners, I do not believe that specific reforms relating to children are needed. However, children of cohabiting partners would indirectly benefit if their parents were able to make financial claims on relationship breakdown or death.

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

15. This is a much-debated issue. One objection to equalising the rights of married and cohabiting partners is that this may serve to undermine marriage as an institution and therefore cause social harm. However, this objection ignores the fact that marriage rates in England and Wales have declined rapidly over the past decades despite the fact that there is insufficient legal protection should the relationship break down.[4] It seems unlikely that the availability or otherwise of legal remedies factors heavily in couples’ decisions to marry and there is no reason to believe that the rate of marriage would decline exponentially if financial remedies were extended to cohabitants.

16. Another objection to equalising rights between married and cohabiting couples relates to the fact that cohabitants have not consented to extensive legal obligations and that these should not be imposed against their will.[5] I have dealt with this point above and do not find this argument entirely convincing. It is far too simplistic to assume that the parties have made an express choice not to marry and even if such a choice has been made, it may not be a mutual one, especially if the parties are not on an equal financial footing. Any concerns relating to lack of choice can be dealt with by allowing parties to contract out of any regime (with appropriate safeguards). As I mentioned above, under the Matrimonial Causes Act 1973, the law does not merely respond to the parties’ consent to marriage but factors such as contributions and need (against which all awards need to be justified). There is no satisfactory reason why the law should not address relationship-generated needs and disadvantages in cohabiting relationships simply because the parties have not formalised their relationship. Currently, the law allows considerable injustice to occur, particularly for cohabitants with children and other caregiving responsibilities. A statutory redistributory regime would allow some of this injustice to be corrected.

17. In summary, especially where there is demonstrated relationship-generated need or dis/advantage, cohabitants should have the same or similar rights to married couples or civil partners through a discretionary statutory regime.

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

18. I have mentioned some of these in the answers to previous questions. Jurisdictions such as New Zealand[6] and Australia[7] put cohabitants on an equal footing to married couples, subject to a minimum time requirement.[8] While the regimes in both Australia and New Zealand are discretionary, the New Zealand legislation includes a statutory presumption of equal sharing of assets. The extension of these regimes have operated for over a decade in Australia and two decades in New Zealand and could provide a helpful model for England and Wales.

19. The Law Commission’s 2007 report ‘Cohabitation: The Financial Consequences of Relationship Breakdown’[9] recommended a model based on the Family Law (Scotland) Act 2006 (discussed above), whereby the applicant must show either a financial disadvantage as a result of contributions to the relationship, or a corresponding advantage on the part of the respondent. The Law Commission’s recommendations fall short of equalising rights between married couples and cohabitants but would nonetheless address the current injustice and would, in my view, provide a suitable compromise for those who are concerned that cohabitants should not be granted the same rights as married couples.

August 2021