According to the Office Of National Statistics, unmarried couples and families living together are the fastest growing cohabitants in the United Kingdom. As of 2016, there are approximately 3.3 million cohabiting families and the number has doubled since the statistics taken 1996 at 1.5 million.
Legislation for the protection of unmarried couples and families is well overdue. Lawyers have been arguing this issue for well over 10 years. This includes the rights and responsibilities of unmarried couples upon separation and should be addressed as soon as possible.
A recent survey by the Family Lawyers Organisation of its members revealed that 88% of cohabiting couples believe they have legal protection. It has also shown that 98% mistakenly believed they have the same rights as married couples.
Due to the statistics from surveys, it is believed that legislation for unmarried couples has not provided proper legal protection. Back in 2007, the Law Commission recommended a plan that would be a contribution-based financial award for separating couples who had a child together and lived together for a certain period of time. Couples in the plan also had the option to back out if they chose to.
In 2011, the government announced they would not move forward with these proposals. Even though the commission called on the next government to move forward and not delay, there was a lack of interest or political will. In light of more pressing issues of national interest, there have been no changes.
Nigel Shepherd, chair of Resolution and head of family law at Mills & Reeve, told Solicitors Journal that his organisation envisions a law where unmarried couples could meet the criteria, through a committed relationship, allowing them the right to apply for certain financial orders upon separation.
This right would kick in automatically unless the couple chose to back out. The court would be able to make the same orders as they do for divorced couples but on a limited basis. These benefits could include payments for child care which would allow the caregiver the ability to work.
According to Julia Thackray, former head of the family team at Penningtons and programme leader at Central Law Training, believes reforms are well overdue. She went on to point out, with the increasing number of couples living together, it is even more critical that the government gets back to the issue of cohabitation and financial protection for these people. This issue should not be a carbon copy of divorce but should offer some level of protection and as a safety net where otherwise real needs will not be met.
Unfortunately, there are many cases where people are extremely vulnerable, they have children, cannot work or only work part-time, and this contributes to more family financial concerns. They have to compromise their earning abilities and limited housing options and there is absolutely nothing they can do about it. In other situations where couples do not have children but have other expenses, they are not allowed to make a property claim. Due to other expenses, it may allow the property owner to pay off more on their mortgage so they can have an advantage later on.
In June of 2015, Lord Marks introduced the Cohabitation Rights Bill to address this huge vacuum in the law. This bill would provide basic protections for unmarried couples and a provision for their property upon one partner’s death. Under the bill, the court would be able to make a financial settlement order where there is a “retained benefit” or “economic disadvantage” dependent. This would allow for “qualifying contributions” be made for either financial or other reasons.
Before an order can be presented, the court must deem whether it is fair when addressing any “discretionary factors” which would include the earning capabilities of both parties and the welfare of a child. Couples would also have protection upon a death instead of just separation and this is a very important point.
Lord Marks’ bill also has safeguards in place that would provide protection for insurable interests in lives, being intestate upon death, and rights related to their home. It also provides for the possibility for a claim against a partner’s estate upon death.
Lord Marks will take part in an upcoming debate to support extending the legal rights of those who choose not to marry. Those advocating reform will want to stay up on the progress being made by the bill in the House of Lords. Without a specific date for the second reading of his bill, no one is any closer in guaranteeing cohabitation laws will meet the demands of the 21st century than the Law Commission was 10 years ago.
Unmarried couples should have the same protections and rights as those who are married. With the growing number of people are choosing to live together vs marrying, the government must address these concerns in a timely manner.